INDEX-DIGEST KEY NUMBER SYSTEM THIS IS A KEY-NUMBER INDEX It Supplements the Decennial Digest, the Key-Number Series and ABANDONMENT. See Execution, 146; Homestead, ABATEMENT AND REVIVAL. ulently concealed fact, but afterwards admitted mistake and promised to pay balance due, 1812; they were liable to seller for such balance.International Life Ins. Co. v. Stuart, 201 S W. 1088. See Election of Remedies; Limitation of Actions. (1) (Mo.App.) Where discharged servant, under contract, received check marked "in full," his addition of the words "to date" did not change the legal import of the check in any V. DEATH OF PARTY AND REVIVAL way, when no damages for the breach had OF ACTION. (B) Continuance or Revival of Action. been considered in finding the amount due him. -Murphy v. Menke Grocery Co.. 201 S. W. 650. 72(7), (Ark.) Under Kirby's Dig. § 6310.23 (Mo.App.) Where servant under contract was discharged, his receipt of a check marked "in full" after settlement of his account to date, without consideration of damages for the breach, was not an accord and satisfaction as to damages for wrongful discharge.-Murphy v. Menke Grocery Co., 201 S. W. 650. as to revival of actions, it is not necessary to have revivor in name of heirs before there can be an order for sale of attached lands in action for recovery of money judgment against the ancestor in which title was not involved, where there was revivor in name of special administrator as permitted by sections 629826(1) (Mo.App.) The plea of accord and sat6300.-Lanier v. Shonyo, 201 S. W. 108. ACCORD AND SATISFACTION. See Payment; Release. isfaction is one of confession and avoidance, and ordinarily the one pleading it has the burden of proof to establish the plea.-Murphy v. Menke Grocery Co., 201 S. W. 650. II. TAKING AND CERTIFICATE. 22 (Mo.App.) Notary, in certifying to identity of chattel mortgagor, at his peril must know personally that the signer is mortgagor described.-State ex rel. and to use of Dominick v. Farmer, 201 S. W. 955. 48 (Mo.App.) Act of notary in attaching to chattel mortgage certificate of acknowledgment, and jurat to affidavit of ownership, held not proximate cause of loss to remote transferees of note and mortgage, arising from fact no such person as mortgagor, and no such property as described in mortgage, were in existence.-State ex rel. and to use of Dominick v. Farmer, 201 S. W. 955. 5 (Mo.App.) There was no accord and satisfaction regarding discharged servant's contractual right to remain in service by his reIII. OPERATION AND EFFECT. ceipt of check marked "in full," which merely represented wages due, though the master in- 57 (Ark.) Since Const. Okl. Schedule, § 6, tended that there should be such accord and provides that women may hold the office of nosatisfaction; there being no consideration there-tary public, acknowledgments taken by a fefor.-Murphy v. Menke Grocery Co., 201 S. W. male notary in that state must be treated as valid. Terry v. Klein, 201 S. W. 801. 650. ACQUIESCENCE. 7(3) (Tex.Civ.App.) Where buyers of corporation stock knew that mistake was made in making too small amount of draft, on payment of which they received stock, and fraud-See Criminal Law, 407. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER Action ACTION. 201 SOUTHWESTERN REPORTER sufficient to establish title.-Sullivan v. Sullivan, See Abatement and Revival; Dismissal and 492 [New, vol. 6 Key-No. Series]. I. GROUNDS AND CONDITIONS PRE- (Mo.) Where plaintiffs show record title, defendants, to prevail under 30 years' limitations (Rev. St. 1909, § 1884), must prove that plaintiff had no possession, had paid no taxes, had failed to bring suit within one year, and that defendants are in possession.-Davis Dawson, 201 S. W. 524. V. cer 6 (Ky.) Mere fact that suit to enjoin city from improving road was brought at the in(F) Hostile Character of Possession. stance of the city, which agreed to pay costs, did not make a moot case, where the nominal plaintiff was actually adversely interested, as his property would be subject to assessment if 85(1) (Mo.) In ejectment mere proof alone tain place, being insufficient to show adverse the suit failed.-McCoy v. Carran, 201 S. W. that a fence had stood for 25 years in a possession to the fence, did not shift any bur463. 85(2) (Mo.) Statement of husband as agent den to plaintiff.-Ware v. Cheek, 201 S. W. 847. of his wife 5 years before, in selling a lot, that the lot extended to a certain fence, was incomthereto.-Ware v. Cheek, 201 S. W. 847. petent to show claim of title to the fence prior III. JOINDER, SPLITTING, CONSOLI- ADJOINING LANDOWNERS. See Boundaries. ADJUDICATION. See Insurance, 576. ADMINISTRATION. cer 85(3) (Mo.) In ejectment mere proof alone (G) Payment of Taxes. 95 (Mo.) Where, in action to quiet title, defendants claimed under the 30-year statute of limitations (Rev. St. 1909, § 1884), they could prove nonpayment of taxes by plaintiffs by circumstantial evidence.-Davis v. Dawson, 201 S. W. 524. II. OPERATION AND EFFECT. (A) Extent of Possession. 97 (Mo.) Possession without color of title is confined to part actually occupied.-Davis v. Dawson, 201 S. W. 524. See Bankruptcy, 263; Executors and Ad-100(1) (Ky.) One in the occupancy of a tract ministrators. See Evidence, ADMISSIONS. of land with the intent to claim and hold it to the extent of the boundaries of the instrument under which he holds is in "actual possession" of all to the extent that it is not actually held S. W. 33. 207-211, 265; Criminal Law, by some other person.-Russell v. McIntosh, 201 ADOPTION. 17 (Tex.Civ.App.) Plaintiff could not prove legal adoption by general reputation of adoption.-Lane v. Sanders, 201 S. W. 1018. See Food. ADULTERATION. See Lewdness. ADULTERY. 14 (Tex.Cr.App.) Testimony of accomplice as to nine specific acts of sexual intercourse between the 15th of August and the 25th of December at varying intervals, only three of which were corroborated, without proof of attending circumstances showing that the intercourse was habitual, hold not sufficient to sustain a convietion of adultery by habitual carnal intercourse without living together.-Cordill v. State, 201 S. W. 181. ADVERSE POSSESSION. See Ejectment, 10; Joint Tenancy; Ten- I. NATURE AND REQUISITES. 14 (Ky.) Adverse possession must necessa- (E) Duration and Continuity of Posses sion. 100(3) (Ky.) Where one claiming by adverse possession had no pedis possessio in time sufficient to create title, the only way by which he that the papers under which he claimed actually could establish adverse possession was to show embraced the land and that either he or his predecessor had possession with the intent to hold to the boundaries of the deed.-Russell v. MeIntosh, 201 S. W. 33. 103 (Ky.) If land in controversy was embraced within exceptions in the deeds under which the parties claimed, possession of part of their boundaries by tenants intending to hold of the land in controversy.-Russell v. McIntosh, the entire boundary could not confer possession 201 S. W. 33. 103 (Ky.) Where one with legal title enters land prior to entry of another into interference under junior patent, the former has though he never entered within interference.Foster v. Roberts, 201 S. W. 334. possession beyond actual close of latter, al (B) Title or Right Acquired. ~106 (5) (Tenn.) Although grantor has good title by reason of adverse possession, contract of sale of such land cannot be specifically enforced, unless good title is shown of record.-Cross v. Buskirk-Rutledge Lumber Co., 201 S. W. 141. III. PLEADING, EVIDENCE, TRIAL, 112 (Ky.) Where a deed or patent is relied upon for title, or to show the extent of posses sion, and there are lands excepted therein, the 40 (Ky.) Adverse possession of lands from burden is upon the one who relies upon such in1908 until the bringing of suit in 1915 is in-strument to show that the land he is seeking to recover is not embraced by one of the exceptions.-Russell v. McIntosh, 201 S. W. 33. 14(1) (Ark.) In action to recover land, defendant claiming title by possession under contract of sale to him, evidence held sufficient to sustain verdict for defendant.-Iverson v. Rowland, 201 S. W. 288. 14(1) (Ky.) Evidence held insufficient to establish title by adverse possession.-Russell v. McIntosh, 201 S. W. 33. 114(2) (Mo.) Evidence held to sustain a finding for plaintiff in boundary dispute where defendant set up adverse possession.-Ware V. Cheek, 201 S. W. 847. ALTERATION OF INSTRUMENTS. See Bills and Notes, 378; Reformation of Instruments. 2 (Mo.App.) Alteration of note is material if it might easily affect party's substantial rights, and it is not necessary that such result actually follow.-Mechanics' American Nat. Bank v. Helmbacher, 201 S. W. 383. 3 (Mo.App.) Addition of "trustee" after name of payee of note changed relations of parties and amounted to material alteration within Rev. St. 1909, §§ 10094, 10095.-Mechanics' American Nat. Bank v. Helmbacher, 201 S. W. 383. ing.-Foster v. Iowa City State Bank, 201 S. W. 733. ma 20 (Mo.App.) Note which has been terially altered is void, except as against party who has himself made, authorized, or assented to alteration, and subsequent indorsers.-Mechanics' American Nat. Bank v. Helmbacher, 201 S. W. 383. Holder in due course of note which has been materially altered, except as pointed out in Rev. St. 1909, § 10094, can only recover according to original tenor.-Id. materially altered by characterizing payee as trustee can recover only according to original tenor, and therefore cannot recover where payee has indorsed to it as trustee, as by such indorsement holder took no title.-Id. Holder in due course of note which has been AMBIGUITIES. See Evidence, 450. AMENDMENT. See Appeal and Error, 590, 643, 918, 1041; Attachment, 154; Indictment and Information, 159; Judgment, 298; Pleading, 246-258; Process, 164. AMOUNT IN CONTROVERSY. See Appeal and Error, 56; Courts, 169, 170; Justices of the Peace, 43, 141. ANCIENT DOCUMENTS. See Evidence, 372. ANCILLARY ADMINISTRATION. See Executors and Administrators, 518. ANIMALS. See Constitutional Law, 62; Criminal Law, 304; Insurance, 426; Railroads, 407-443; Sales, 261, 425. 23, the Legislature can pass laws for the regu 29 (Tex.Cr.App.) Under Const. art. 16, § lation of live stock affecting any given locality, and make it effective with or without submit ting it to vote.-Mulkey v. State, 201 S. W. 991. APPEAL AND ERROR. See Certiorari; Exceptions, Bill of; New Trial, 13. For review of rulings in particular actions or proceedings, see also the various specific top ics. 6 (Mo.App.) Addition to note of special place of payment was "material alteration" within Rev. St. 1909, §§ 10094, 10095.-Me- 1. NATURE AND FORM OF REMEDY. chanics' American Nat. Bank v. Helmbacher, 201 S. W. 383. (Tenn.) Remedy by. appeal is wholly of constitutional or statutory origin, and if no right of appeal is given by statute, by express words or necessary implication, no appeal will lie.-State v. Bockman, 201 S. W. 741. 9 (Tex.Civ.App.) Where perfumes were sold, and seller's agent entered on margin of order, "One oak showcase free," such words did not alter written order to which buyer's note was attached.-Foster v. Iowa City State Bank, 2017 (Tenn.) General appellate and revisory S. W. 733. jurisdiction of circuit court over all inferior tribunals created by Legislature and vested with judicial powers, as juvenile court of county, may be invoked by certiorari and supersedeas, where no appeal or writ of error lies for correction of judgments of such inferior tribunals. 12 (Ky.) The words, "the detachable agreement below." where what follows if detached from contract would be nonnegotiable, do not authorize a detachment on a dotted, nonperforated line further down the page to form a promissory note, and if payee makes such al--State v. Bockman, 201 S. W. 741. teration without maker's consent, the whole contract is vitiated.-Harrison v. Union Store Co., 201 S. W. 31. 12 (Tex.Civ.App.) Where contract for sale of perfume gave seller authority to detach from order note signed by buyer, when seller approved order and shipped goods, buyer was not released from liability on note by seller's so do III. DECISIONS REVIEWABLE. (C) Amount or Value in Controversy. 56 (Ky.) Where injured servant recovered only $400 damages, appeal from judgment in his favor will, amount being less than $500, be dismissed.-Carter Coal Co. v. Filipeck, 201 S. W. 468. IV. RIGHT OF REVIEW. (A) Persons Entitled. 146 (Ky.) A single appeal from separate judgments in favor of different parties cannot be prosecuted by making the statement required by Civ. Code Prac. § 739.-Matney v. Edmonds, 201 S. W. 465. (B) Estoppel, Waiver, or Agreements Affecting Right. a general verdict for four sales.-Jackson County v. Enright, 201 S. W. 599. ~193(4) (Mo.) In suit for injuries sustained by plaintiff when an elevator in which he was working fell to bottom of shaft, plaintiff's petition, alleging that elevator "would drop," held sufficient to support judgment as against objection that it was deficient in using quoted words in place of phrase "did drop." raised for first time on appeal.-Hines v. Hammond Packing Co., 201 S. W. 1127. 154(1) (Ark.) Where the mayor of a city 194(1) (Mo.App.) Where no attack was was removed for failing to disperse a riotous made before trial upon a poorly drawn answer, assembly and was fined $250, he had a right to it cannot be attacked upon appeal if it states appeal, notwithstanding he was the candidate any defense at all.-Scheidel-Western X-Ray at the election called to fill vacancy caused by Co. v. Bacon, 201 S. W. 916. his removal.-Wright v. State, 201 S. W. 1107. 204(1) (Tex.Civ.App.) That one may com V. PRESENTATION AND RESERVA- (A) Issues and Questions in Lower Court. plain on appeal of introduction of improper evidence, he must have objected to it at the time, and preserved the objection by bill of exceptions.-City of San Antonio v. Newnam, 201 S. W. 191. ≈209(2) (Ark.) Defendant not having offered any evidence on the issue of value, or asked submission thereof, cannot, on appeal, contend plaintiff's testimony that the 13 bales were worth $35 or $40 a bale did not show the aggregate value to equal $500.-Security Bank 171(1) (Mo.App.) Where case based, & Trust Co. v. Bond, 201 S. W. 820. was both in pleading and submission, on theory that 212 (Tex.Civ.App.) Assignment of erprovision of contract requiring notice of loss ror to peremptory instruction for appellee was within four months had been waived by de- insufficient; it not appearing that appellant fendant carrier, judgment setting aside verdict objected to giving of charge complained of, as for plaintiff shipper could not be reversed on required by Rev. St. art. 1971.-Shuler v. City appeal, on ground that plaintiff's letter to de- of Austin, 201 S. W. 445. fendant's agent constituted notice, especially 215(1) (Ark.) Failure to have the jury polled where neither writing nor receipt of letter was established. Cudahy Packing Co. v. Chicago & N. W. Ry. Co., 201 S. W. 598. 171(1) (Tex. Civ.App.) Where appellee pleaded and proved theory upon which he sought to recover, he will not be permitted to recover on theory made by evidence of intervener who conspired with him against principal.-Binder v. Millikin, 201 S. W. 239. 171(3) (Ark.) In action on life policy, though answer was defective in stating conclusion of law, where parties treated answer as raising issue as to insurable interest, defect cannot be taken advantage of for first time on appeal.-Cotton v. Mutual Aid Union, 201 S. W. 124. 173(2) (Mo.) Where defendants did not rely on presumption of execution to them of deed from the record owner, such claim could not be considered on appeal.-Davis v. Dawson, 201 S. W. 524. as authorized by Kirby's Dig. § 6203, does not prevent appellant from insisting on error in an instruction that verdict might be returned on agreement of nine jurors.-Davis v. H. A. Nelson & Son; 201 S. W. 511. 215(1) (Tex.Civ.App.) Complaint cannot be made for the first time on appeal that a charge was inconsistent, conflicting, contradictory, confusing, and misleading.-Corpus Christi Street & Interurban Ry. Co. v. Kjellberg, 201 S. W. 1032. 215(1) (Tex.Civ.App.) Failure to object to an instruction raises the presumption that the party so failing approved it.-Ft. Worth & D. C. Ry. Co. v. Miller, 201 S. W. 1049. 215(3) (Mo.) In an action for personal injuries by being run over by automobile, where complaint alleges that act was willful and malicious, defendant cannot, after failing to require election between theory of malice and theory of negligence, object to instruction based upon negligent injury.-Miller v. Harpster, 201 s. 173(6) (Ark.) Issue that ordinances establishing improvement districts were passed on W. 854. Sunday cannot be raised for first time on ap-230 (Tex.Civ.App.) Provisions of Vernon's peal in suit to enjoin further proceedings.-Bux- Sayles' Ann. Civ. St. 1914, art. 1971, that obton v. City of Nashville, 201 S. W. 512. jection to charge shall be waived unless presented to the court before it is read to the jury, held not to apply to peremptory instruction.-Kirlicks v. Texas Co., 201 S. W. 687. 173(6) (Mo.App.) In action on dramshop bond under Rev. St. 1909, § 7196, where valid instrument is described, and it is not denied under oath, it stands admitted, and, if it is not 231(2) (Mo.App.) Error, if any, in permitattacked on the trial, the defendant cannot claim that the bond was not in proper form, although plaintiff introduced it in evidence.-Jackson County v. Enright, 201 S. W. 599. (B) Objections and Motions, and Rulings Thereon. 188 (Tenn.) Where parties below treated the levy of a writ of attachment as valid, held, that on appeal objections to the validity of the service of the writ then made for the first time could not be considered.-Brewer v. De Camp Glass Casket Co., 201 S. W. 145. 193(3) (Mo.App.) In action on dramshop bond under Rev. St. 1909, § 7196, where suit was brought in one count for ten sales to a habitual drunkard, and defendants made no attempt to reach the defect, they cannot complain that the court allowed, and the jury returned, ting a physician to answer a hypothetical question alleged to be based upon erroneous conditions is not available, where the objection made to such question failed to point out the alleged error, and no proper objection was taken to the evidence until plaintiff had rested her case, and the evidence was then stricken.-Shafer Kansas City Rys. Co., 201 S. W. 611. V. 231(3) (Tex.Civ.App.) Where ground of objection to admission of evidence is not stated, matter cannot be reviewed.-McAllen v. Wood, 201 S. W. 433. 231(7) (Mo.) Objection to allowing witness to testify as to place where accident occurred because he had testified that he was not looking that way, cannot be sustained, where attention of appellate court is not directed to testimony of witness showing he was not so looking at time, and opposing counsel at time of such ob |